is discharged, not merely from the debt, but from all remedies for its recovery, in the case of a debt proveable under the commission (p).

By sect. 126, any bankrupt who shall, after his certificate shall have been allowed, be arrested, or have an action brought against him for any debt, claim, or demand, hereby made proveable under the commission, shall be discharged upon common bail; and may plead in general that the cause of action accrued before be became bankrupt, and may give this act and the special matter in evidence; and the certificate and the allowance thereof shall be sufficient evidence of the trading, bankruptcy, commission, and other proceedings precedent to the obtaining such certificate (26).

By sect. 127, if any person who shall have been so discharged by such certificate, or who shall have compounded with his creditors, or who shall have been discharged by an insolvent act, shall become bankrupt, and have obtained such certificate, unless his estate shall produce (after all charges,) sufficient to pay every creditor under the commission 15s. in the pound, such certificate shall only protect his person from arrest and imprisonment; but his future estate and effects (except his tools of trade and necessary household furniture, and the wearing apparel of himself, his wife, and children,) shall vest in the assignees under the said commission, who shall be entitled to seize the same in like manner as they might have seized property of which such bankrupt was possessed at the issuing the commission.

The foregoing 127th section does not entitle a creditor to proceed against the bankrupt after a second certificate, for a debt which he might have proved under the commission; and if the creditor brings an action for such debt, the certificate (q) will be a bar. Debt on bond-Plea, bankruptcy: The defendant had since the date of the bond been discharged under an Insolvent Act, but the bond had not been inserted in the schedule: a commission of bankrupt had afterwards issued against him, under which he obtained his certificate before the day on which the stat. 6 Geo. IV. c. 16, received the royal assent, but his estate had not produced 15s. in the pound. The court was of opinion (r), that there were not any words in the 127th section by which the right of a creditor, situated as the plaintiff was, to sue the bankrupt and recover a judgment, and have execution against his effects, was specifically and expressly

(p) Davis v. Shapley, 1 B. & Ad. 54; Barrow v. Poile, 1 B. & Ad. 629.

(g) Robertson v. Score, 3 B. & Ad. 338, recognized in Elston v. Braddick, Ex. Feb.

21st, 1834, 2 Mont. & Ayr. 436, n.
(r) See Carew v. Edwards, 4 B. & Ad.
351.

(26) It is a good answer to a plea of bankruptcy, that the certificate was obtained by fraud. Horn v. Ion, 4 B. & Ad. 78.

taken away, or the effects of a bankrupt, situated as the defendant was, were specifically and expressly vested in his assignees; and, consequently, the certificate was no bar. They added, that these grounds of their judgment left the case of Robertson v. Score wholly untouched. Where A. had obtained his certificate under a second bankruptcy before the statute 6 Geo. IV. c. 16 came into operation, it was holden (s) to be a valid defence, in trover for goods, that the goods were in the disposition of A., against whom a fiat issued in 1836, under which the defendant converted as assignee; although A. had not paid 15s. in the pound under the second commission; for this section is not retrospective so as to apply when the second certificate was obtained before the act came into operation; but it does apply where the second certificate was obtained after the act came into operation, although the second commission was before (t).

The 127th section vests the future estate in the assignees absolutely (u), and does not leave the bankrupt a right of action subject to their interference.

It is sufficient for the defendant to pursue the words of the statute, and to aver that the cause of action accrued before he became a bankrupt, without averring that the defendant had conformed, according to the bankrupt statute (x), or that the defendant became a bankrupt before the commencement of the suit (y). By a certificate obtained under a joint commission, separate as well as joint debts are discharged (z)." In like manner by a certificate obtained under a separate commission, joint debts as well as separate debts are discharged (a). Formerly, indeed, doubts were entertained whether a certificate under a separate commission, against one partner, would not discharge the other partner; and, therefore, it was held necessary to provide against such discharge by stat. 10 Ann. c. 15. That statute is now repealed; but by stat. 6 Geo. IV. c. 16, s. 121, no certificate shall release or discharge any person who was partner with the bankrupt, at the time of his bankruptcy, or who was then jointly bound, or had made any joint contract with the bankrupt. This general plea of bankruptcy may be supported by evidence of a certificate allowed after bill filed, and before plea pleaded (b), the cause of action having accrued before the bankruptcy; but the certificate cannot be given in evidence under the general issue, for the debt still exists, and as the certificate only operates as a special discharge from it under the statute, the defendant must avail himself of this discharge in the manner prescribed

(s) Benjamin v. Belcher, 3 P. & Da. 317. See Elston v. Braddick, 2 Cr. & M. 435; 4 Tyr. 122; Butler v. Hobson, 4 Bingh. N. C. 290; 5 Bingh. N. C. 128.

(t) Young v. Rishworth, 3 Nev. & P. 585; 8 A. & E. 470.

(u) Young v. Rishworth, ubi sup.
(x) Willan v. Giordani, Co. B. L. 5th

edit. p. 518, in which Paris v. Salkeld, 2 Wils. 139, was overruled.

(y) Tower v. Cameron, 6 East, 413;
Howard v. Poole, Str. 995; Dav. 431.
(z) S. C. Wickes v. Strahan, Str. 1157;
S. P. Horsey's case, 3 P. Wms. 25.

(a) Exp. Yale, 3 P. Wms. 24, n.
(b) Harris v. James, 9 East, 82.

by the statute (c). Where the bankrupt is sued for a cause of action accruing before his bankruptcy, and pending the suit and before trial obtains his certificate, he must plead (d) it, puis darrein continuance; and if he neglects to do so, and judgment is obtained against him, he will not be permitted to plead his certificate to an action on such judgment. See new rule as to plea puis darrein continuance, ante, p. 134.

The certificate will operate as a discharge (e) of such debts only as are due at the time when the act of bankruptcy is committed; and the foregoing remark as to the time when the certificate was obtained must be attended to. But if an action be commenced against a bankrupt after the bankruptcy, for a debt due before the bankruptcy, and a verdict found for the plaintiff, and afterwards the bankrupt obtains his certificate; the costs of such action, as well as the original debt, are proveable under the commission. Willet v. Pringle, 2 Bos. & Pul. N. R. 190. The costs bear relation to the original debt; hence where plaintiff before the bankruptcy of the defendant sued him for a debt, and went on with the suit after such bankruptcy, and had judgment, and defendant obtained his certificate, and afterwards brought a writ of error, which was nonprossed, and costs of non-pros in error awarded against him; it was holden, that the certificate discharged the defendant from these costs. Scott v. Ambrose, 3 M. & S. 326. Debts proveable under the commission, and debts to be discharged by the certificate, are convertible terms; and debts not due at the time of the act of bankruptcy, except in the cases especially provided for by the statute, are not affected by the commission. Hence where a debt accrues after an act of bankruptcy and before the issuing of the commission (f), the bankrupt will remain liable, although he has obtained his certificate, and cannot avail himself of the general plea of bankruptcy. By 6 Geo. IV. c. 16, s. 51, Any person who shall have given credit to the bankrupt upon valuable consideration, for any money or other matter or thing, which shall not have become payable when such bankrupt committed an act of bankruptcy, and whether such credit shall have been given upon any bill, bond, note, or other negotiable security or not, shall be entitled to prove such debt, bill, &c. as if the same was payable presently, and receive dividends equally with the other creditors, deducting only thereout a rebate of interest for what he shall so receive, at the rate of five per cent. to be computed from the declaration of a dividend to the time such debt would have become payable. And by sect. 56, if any bankrupt shall, before the issuing of the commission, have contracted any debt payable upon a contingency which shall not have happened before the issuing of such commission, the person with whom such debt has been contracted may apply to the commis

(c) Gowland v. Warren, 1 Campb. 363. (d) Todd v. Maxfield, 6 B. & C. 105.

(e) Bamford v. Burrell, 2 Bos. & Pul. 1. (f) Todd v. Maxfield, 6 B, & C. 105.

sioners to set a value upon such debt, and the commissioners are to ascertain the value, and to admit such person to prove the amount and to receive dividends thereon; or if such value shall not be so ascertained before the contingency shall have happened, then such person may, after such contingency shall have happened, prove in respect of such debt, and receive dividends with the other creditors not disturbing any former dividends; provided such person had not, when such debt was contracted, notice of any act of bankruptcy by such bankrupt committed (g).

By marriage settlement, S. covenanted to cause a sum of money to be paid to his wife's trustees within twelve months after his own death, in trust to pay her the interest for her life in case she survived him, and afterwards the principal to their children; but if they had not any children, then to the survivor of them, that is S. and his wife, his or her representatives. It was holden (h), that this was a debt on a contingency proveable under the foregoing section. The instalments of an annuity for the payment of which a bankrupt is surety (i) only, and which he covenants to pay in case of the default of the grantor, are not, when they become due after his bankruptcy, proveable. N. The 54th section enables an annuity creditor of a bankrupt to prove the value of the annuity against the grantor.

A debt due on a judgment signed in an action for damages after an act of bankruptcy committed by defendant, and a commission issued thereon, is not discharged by the certificate, though the verdict was obtained before the bankruptcy (k). So a bankruptcy of plaintiff occurring after verdict for the defendant, and before judgment, the subsequent certificate is no bar to an execution for the costs of the action (1). Verdict for defendant in July. Commission against plaintiff in August; judgment against him, and certificate for him in Mich. T. ensuing; it was holden (m), that the plaintiff was liable to an execution for costs, notwithstanding the 56th section. So where plaintiff became bankrupt after nonsuit, but before judgment signed (n). Plaintiff obtaining judgment against bankrupt for debt proveable under commission, is entitled to prove for the costs, though not taxed at the time of the bankruptcy. But if the acceptor of a bill of exchange not due become bankrupt (0), and the indorser be afterwards obliged to take up the bill on account of non-payment by the acceptor, he may prove the amount under

(g) See Yallop v. Ebers, 1 B. & Ad. 698.

(h) Exp. Tindal, cor. Lord Brougham, C., Tindal, C. J., and Littledale, J., reversing the decision of Lord Lyndhurst, who had reversed the decision of the Vice Chancellor, 8 Bingh. 402.

(i) Thompson v. Thompson, 2 Bingh. N. C. 168.

(k) Buss v. Gilbert, 2 M. & S. 70. (1) Walker v. Barnes, 5 Taunt. 778; 1 Marsh. 345, S. C.

(m) Birè v. Moreau, 4 Bingh. 57. (n) Haswell v. Thorogood, 7 B. & C. 705.

(0) Joseph v. Orme, Bos. & Pul. N. R. 180.

the commission; and consequently if the acceptor afterwards obtain his certificate, he will be discharged from the debt. So where a verdict is obtained in vacation, against a trader, who, after the first day of next term, but before final judgment is signed, becomes bankrupt; it is holden, that the judgment signed in the same term relates to the first day of the term, and that the debt thereby created is barred by the certificate; and this rule holds, whether the verdict be in an action of assumpsit (p) or tort (q).

Before the year 1819, a debt for which a person was merely liable as surety, but which was not paid until after the bankruptcy of the principal, was not proveable under the commission, and consequently was not barred by the certificate (r); but now by stat. 6 Geo. IV. c. 16, s. 52 (s), any person who, at the issuing the commission, shall be surety or liable (27) for any debt of the bankrupt, or bail for the bankrupt (t), either to the sheriff or to the action, if he shall have paid the debt, or any part thereof in discharge of the whole debt, (although he may have paid the same after the commission issued,) if the creditor shall have proved his debt under the commission, shall be entitled to stand in the place of such creditor as to the dividends and all other rights under the said commission, which such creditor possessed or would be entitled to in respect of such proof; or if the creditor shall not have proved under the commission, such surety, or person liable, or bail, shall be entitled to

(p) Exp. Birch, 4 B. & C. 880.
(q) Greenway v. Fisher, 7 B. & C. 436.

Chilton v. Wiffin, 3 Wils. 13; Young v. Hockley, 3 Wils. 346; 2 Bl. R. 839, S. C.; Vanderheyden v. De Paiba,

3 Wils. 528.

(8) See corresponding section, 49 Ge III. c. 121, s. 8, but now repealed. (t) This is new; see Hewes v. Mott, 6 Taunt. 329.

66

(27) A. had indorsed a bill for the accommodation of B., the prior indorser; B. became bankrupt, and obtained his certificate: A. was called on to pay the bill after the bankruptcy: it was holden, that although A. could not be considered as surety for the debt of B., inasmuch as he was liable primarily to the holder as indorser, that is, as principal, and not surety, on failure of B., the prior indorser; yet A. was a person liable" for the debt of B. within the act. Bassett v. Dodgin, 9 Bingh. 653, recognizing Exp. Lloyd, 1 Rose, 6; and Exp. Yonge, 3 Ves. & Beames, 40, where a sum of money being due from A. to B., C., at B.'s request, and for his accommodation, drew a bill on A. for the amount, which A. accepted; and C. then indorsed the bill and gave it to B., who indorsed and negotiated it. B. having subsequently become bankrupt, and the bill having been dishonoured and paid by C.; it was holden, that the amount of the bill was proveable by C., for C. was surety for the debt of the bankrupt, contracted by his obtaining credit on the bill indorsed by C., although he was not an immediate surety, but only on the default of the acceptor; and consequently that C.'s right of action against B. for the amount of the bill was barred by the certificate. Haigh v. Jackson, 3 Mee. & Wels.